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A San Diego Personal Injury Lawyer Explains Attorney-Client Privilege                        

Attorney-client privilege is a term well-known to Americans. It has been used time and time again in movies, TV series, and other popular media outlets to display the importance of the relationship between a client and their attorney(s). However, few people outside of the legal world know the realities of attorney-client privilege and what protections it grants in comparison to other legal ethic doctrines such as the work-product doctrine and the duty of confidentiality.

According to Cornell Law’s Legal Encyclopedia, attorney-client privilege is a “legal privilege that works to keep communications between an attorney and his or her client secret.[1]” The privilege is evidentiary, typically invoked during litigation or court proceedings, and protects communications in pursuit of legal advice. Confidential communications are also protected if they are within the scope of the particular case in question. Confidential communications encompass private conversations or communications “intended only to be heard by private parties[2]” and can only be made in the presence of a third-party if that third-party is necessary (e.g. there is a language barrier and an interpreter is need).

San Diego Personal Injury AttorneyDespite attorney-client privilege, there are instances where an attorney can or must break privilege. As officers of the court, attorneys are upheld to ethical standards and, while they can represent clients for crimes they may or may not have committed, an attorney cannot help further a crime, nor can they advise you on how to cover up a crime. In cases in which the attorney is informed of plans to commit a crime the privilege of silence is waived due to an attorney’s obligation to justice. Other ways attorney-client privilege does not apply is when person(s) unrelated to the case are present for the communications between the attorney and client. Despite these exceptions, an attorney cannot be compelled to testify against their client if communications are, in fact, protected by privilege.

Similarily to attorney-client privilege, work-product doctrine is also called upon during litigation or court proceedings. Work-product doctrine protects an attorney’s “notes, observations, thoughts, and research[3]” which were prepared or formed as a result of possible litigation, or during litigation, from discovery. However, unlike attorney-client privilege, work-product can be compelled if the opposing side can establish “substantial need[4]” for the information.

Unlike attorney-client privilege and work-product doctrine, the duty of confidentiality is broader in its protections and encompasses aspects of both attorney-client privilege and work-product doctrine. Where attorney-client privilege is evidentiary, the duty of confidentiality is based upon ethics. While attorney-client privilege does protect information that is well-known to the public or information that is known by persons outside of the case, the duty of confidentiality bars an attorney from revealing that information in the case that the information is beneficial to the opposing party. However, since the duty of confidentiality is broader, communications and information that are not covered by attorney-client privilege or work-product doctrine can be compelled if the attorney is forced to testify.

If you were involved in a collision or incident and need an attorney to advise you on your next step, a personal injury attorney San Marcos will help address any questions you may have and guide you down the right path. Please call (858) 252-0781 to set up a free consultation.

Disclaimer: While we always seek to establish accuracy when publishing articles, this piece is not intended to provide legal advice, and should not be used as such. Each individual case will differ and should be discussed with an attorney or legal expert. If you would like to inquire about pursuing a claim, please contact a personal injury lawyer San Diego at (858) 252-0781 or email brett@acclaimlaw.com

[1] Attorney-Client Privilege. (n.d.). Retrieved from law.cornell.edu: https://www.law.cornell.edu/wex/attorney-client_privilege

[2] Michmerhuizen, S. (2007, May). Confidentiality, Privilege: A Basic Value in Two Different Applications. Retrieved from https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/confidentiality_or_attorney.authcheckdam.pdf

[3] Michmerhuizen, S. (2007, May). Confidentiality, Privilege: A Basic Value in Two Different Applications. Retrieved from https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/confidentiality_or_attorney.authcheckdam.pdf

[4] Court Examines Withheld Work Product in Assesing the Adversary’s “Substantial Need” to See It. (n.d.). Retrieved from americanbar.org: file:///C:/Users/brett/Downloads/_RP572000_newsletterpubs_Spahnsubstantialneed.pdf

 

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